Filed 9/29/20 In re I.A. CA5

NOT TO B E PU B LISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohi b its courts and parties from citing or relying on opinions not certified for pu b lication or ordered pu b lished, except as specified b y rule 8.1115( b ). This opinion has not b een certified for pu b lication or ordered pu b lished for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

In re I.A., a Person Coming Under the Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,

v.

D AWN W., Appellant. F080836
(Super. Ct. No. 12CEJ300255

- 4)



### OPINION

THE COURT *
APPEAL from a n order of the Superior Court of Fresno County. Jane Cardoza, Judge. Dawn W., in pro. per. , for Appellant.
Daniel C. Ceder b org, County Counsel, and Lisa R. Flores, Deputy County Counsel, for P laintiff and Respondent.

- ooOoo

-

* B efore Franson, Acting P.J., Snauffer, J. and De Santos, J.2

.

In this dependency action, a ppellant Dawn W. appeals the juvenile court’s order denying her Welfare and Institutions Code section 388 1 petition to have her adoptive daughter’s minor half sister, I. A

. , placed with her. Finding no error, we affirm.

FACTUAL AND PROCEDURAL B ACKGROUND
On Novem b er 15, 2019, appellant filed a section 388 petition in the juvenile dependency matter regarding I. A . Appellant is the adoptive mother of I. A .’s half si b ling , V.W. V.W. was b orn in Novem b er 2013. Appellant was a n on

- r elative e xtended f amily

m em b er placement for V.W., and the adoption b ecame final in March 2015. In March 2019, appellant learned that V.W.’s b iological mother had given b irth to I.A. in Fe b ruary 2019. In appellant’s section 388 petition, she requested the juvenile cou rt to change its order placing I. A . with her current care provider and place I. A . in her home instead.
Under the section in the petition for new information, a ppellant alleged she had requested placement of I. A . since she found a b out I.A.’s b irth in March 2019 b ut was informed b y the Fresno County Department of Social Services (department) that the current care provider was a b lood relative. Appellant alleged the care provider was not related. Appellant alleged she and her hus b and had b een licens ed resource parents since
Decem b er 2018. Appellant alleged the requested change of placement was in I. A .’s b est interest b ecause :

“ I t would b e b etter for [I. A .] to have an opportunity for life

- long support from her sisters and our family. The current ca regiver is elderly and is likely to b ecome una b le to care for [I. A .] at some point during her childhood. We would b e happy to remain in contact with her if the court wishes. We fear that [I. A .] will not have visits with [ V.W. ] once an adoption has b een f

inalized due to caregivers past b ehavior. We can keep [I. A .] in contact with [I. A .’s older half si b lings.]”

1 All further undesignated statutory references are to the Welfare and Institutions Code.3

.

The court ordered a hearing on appellant’s petition. Appellant su b sequently filed a declaration accompanied b y approximately
65 pages of attach ments

. Among the attachments was a letter written b y appellant in March 2019 to the juvenile court outlining her attempts to esta b lish a relationship
b etween V.W. and I. A

. In the letter, appellant explained she had reached out to the department in order to esta b lish visitation b etween V.W. and V.W.’s older half si b lings and I.A. Apparently, visitation was esta b lished b y April 2019, with I.A.’s care provider agreeing to visits one to two times per month. Also attached to appellant’s declaration was seve ral emails addressed b y her to various social workers attempting to get information a b out the case. Of particular note is one of the emails addressed to appellant from a Fresno County employee, “Program Manager” Dalvin B aker, who provided the following ti meline of appellant’s involvement
with the case: “It appears that during the early stages of this case (March 2019

- April 2019), you [appellant] had b een requesting visitation b etween [I.A., V.W., and appellant]. [The family reunification social worke r] first received this request on March 21, 2019 (although I am aware that you attempted to reach [the emergency response social worker] prior to that, with March 5, 2019 b eing your first attempt). “On April 2, 2019, you indicated to [the family reuni fication social worker ] that if placement was ever at risk, you would b e willing to provide placement/a permanent plan for [I.A.] “In my review of this case, it does not appear that placement was ever at risk. Additionally, it appears that your primary request was only for visitations to occur.”
B aker went on to say that appellant’s first apparent request for placement was to the

a doption s ocial w orker on Novem b er 8, 2019. B aker noted that according to his records , the last si b ling visitation occurred in April/May and asked appellant why visitation4

.

stopped. B aker also asked what initiated appellant’s shift from requesting visitati on to placement/adoption of I.A. Appellant responded to B aker b y stating it was her position she always wanted placement of I.A. b ut did not want to seem over ly aggressive and felt that the “law was on [her] side for si b lings to b e placed together” and t hat I.A. would b e placed with her eventually. She stated she had last reached out to the care provider in May 2019, b ut the care provider never responded. There appears to have b een another visit b etween I.A. and appellant and V.W. in Novem b er 2019.
At some point b efore the hearing on the petition, it appears I.A.’s parents’ parental rights were terminated. At the hearing on appellant’s section 388 petition, counsel for the department requested that I. A . remain where she was currently placed and had b een placed since she

was three days old. Counsel argued a placement change was not in the b est interests of
I. A ., who was at that time almost one year old. Counsel also argued there had not b een a change in circumstances to justify granting appellant’s p etition.
Counsel for I.A. su b mitted on a written memorandum of points and authorities , which is not included in this record on appeal. The court found there was no change in circumstances that would warrant a
removal of I. A . from her current care pro vider. The court noted the record demonstrated
I. A . was b onded with the current care provider, that the care provider was providing
excellent care for I. A

. , and was more than willing to adopt I. A

. The court denied appellant’s request stating the reasons were b ecause I. A . had developed a parent/child attachment with her prospective adoptive parent and that the adoptive parent was meeting
all of I. A .’s daily needs and care. The court found no reason to change I. A .’s placement.
The court filed a written order denying appellant’s section 388 petition b ecause

“ [ t ] here is no change in circumstances and the proposed change is not in the minor’s b est interest.”5

. DISCUSSION Appellant argues the court erred b y denying her placement of I.A., citing several authorities touting the importance of si b ling relationships. Specifically, appellant argues that (1) the “U.S. Constitution protects the si b ling relationships of youth in foster care”; (2) “ F ederal court pr ecedent ... clearly esta b lishes a First Amendment right to familial association”; (3) “ F ederal and California legislation have emphasized the importance of foster youth si b ling relationships”; (4) “California law requires child welfare agencies to
preserve a nd protect the si b ling relationships of youth in foster care”; and (5) “ S ocial science research has demonstrated the extraordinary importance of si b ling relationships for youth in foster care.” 2 We appreciate appellant’s position on the general importanc e of the si b ling b ond; however, our role in this appeal is limited to the juvenile court’s denial of her section 388 petition and accordingly we apply the appropriate legal standards which apply to denials of section 388 petitions. A juvenile court order in a dependency proceeding may b e changed, modified, or set aside if the petitioner esta b lishes b y a preponderance of the evidence that (1) new evidence or changed circumstances exist, and (2) the proposed change would promote the
b est interests of the ch ild. (§ 388; In re Stephanie M. (1994) 7 Cal.4th 295, 316‒317.) The petitioner b ears the b urden of showing b oth a legitimate change of circumstances and that undoing the prior order would b e in the b est interest of the child. ( In re Kim b erly F. (1997) 5 6 Cal.App.4th 519, 529.)
Orders on s ection 388 petitions are within the sound discretion of the juvenile court, and its decision shall not b e overturned on appeal a b sent a clear a b use of

2 While appellant does not directly raise the section 361.3 relative placement preference, b ecause she indirectly implicates it b y contending she should b e given placement of I.A. b ecause of her adoptive relation with I.A.’s b iological half si b ling, we b riefly note the section 361.3 relative placement preference no longer applies after a section 366.26 hearing has taken place and a permanent plan of adopti on has b een selected for the child. ( In re K.L. (2016) 248 Cal.App.4th 52, 65

‒ 66.)6

.

discretion. ( In re Stephanie M. , supra , 7 Cal.4th at p. 318.) A reviewing court will not
distur b the juvenile court’s decision unless it has exceeded the limits of legal discretion
b y making an ar b itrary, capricious, or patently a b surd determination. ( I b id .) “ ‘ “ When
two or more inferences can reasona b ly b e deduced from the facts, the reviewing court has no authority to su b stitute its decision for that of the trial court. ” ’ ” ( Id . at p. 319.) Here, we do not find the juvenile court a b used its discretion. At the stage in a juvenile dependency petition after reunification services have b een terminated, “ ‘the focus shifts to the needs of the child for permanency and sta b ility ’

.... A court hear ing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question b efore it, that is, the b est interest s of the child.” ( In re Stephanie M. , supra , 7 Cal.4th at p. 317 .)
F rom t he limited record on appeal , we can determine the juvenile court’s conclusion the proposed order was not in I.A.’s b est interests was reasona b le. I. A . had
b een with her current caregiver her whole life and , according to the court’s comments on the record, was b onded to her. The juvenile court may have reasona b ly concluded it
would have b een detrimental to I.A. to b e taken from the only parents she ever knew. It appears I.A. had a handful of visits with V.W., and we acknowledge the theoretical importance of b iological si b ling relationships. The juvenile court granted a hearing on appellant’s petition, and we presume it fully considered this information as well, and gave it the weight it b elieved was appropriate.
We find no a b use of discretion on this re cord and find the juvenile court did not

err b y denying appellant’s section 388 petition.
DISPOSITION The juvenile court’s order is affirmed.